Rothchild v. Mannesovitch

Parker, P. J.: The decision made by the trial judge, and upon which this judgment was entered, contains neither findings of fact and law, nor a statement of the grounds upon which the issues have been decided. It is merely a statement of what judgment the plaintiff is entitled to,'and directing that such an one be entered in her favor. What issues of fact the trial judge passed upon, and his reasons for directing such a judgment, do not appear in his decision. It appears, however, from his opinion, that he thought the Safran judgment should be vacated because the statement on which it was confessed was not sufficient under section 1274 of the Code of Civil Procedure, and that the Maimesovitch judgment could not be sustained as against the plaintiff because it was entered before the twenty days for answering liad expired. As to the other questions presented by the complaint, he did not pass upon them, nor were they seriously urged upon the argument before ns. Heither of the conclusions reached by the trial court can, in my opinion, be sustained. The statement upon which the judgment was confessed shows, that on October 1, 1892, the defendant Link executed and delivered to Abraham Safran his note for $500, payable in two years from that date; and that such note had been duly transferred to Anna Safran, to whom the judgment was confessed. It also appears from such statement, fairly construed, that the payee therein loaned to the maker, Link, $500, and that such note was given in consideration thereof. The statement is not to the effect that the indebtedness was for money loaned and accrued interest thereon, to the amount of $500, but that it was for money loaned to the amount of $500. Hence there is no uncertainty as to precisely how the demand for $500' arises. The fact that it is not distinctly stated just when the loan [583] was made is not very material. The fair inference is that it was made when the note was given. It is also true that in fixing the amount of the judgment, interest has been figured on the loan from the date of the note, while the statement does not show that the note bore interest from its date. But the statement does not show that it did not bear interest, and so is not inconsistent with the judgment confessed. The statement is that no part of the note or interest has been paid, and that the full amount thereof and interest since October 1, 1892, is due and owing thereon. This statement negatives the idea that the note extended credit on the loan without interest, for two years. It shows beyond all doubt just what the claim is based upon, and in my judgment fully satisfies the requirements of the statute. The confession itself is not fraudulent or void on its face. And particularly should it not be set aside as being for more than the indebtedness actually existing, when it appears from the evidence taken on the trial that the note did by its terms draw interest from its date. As to the Mannesovitch judgment, it was confessedly irregular to enter it on the tenth of December, but such an irregularity is not ground for setting it aside at the suit of a subsequent creditor. The rule of practice, that plaintiff must wait twenty days after service before entering judgment on default, is for defendant’s benefit alone. He may waive it at his pleasure. Though plaintiff violate that rule and enter judgment before he regularly may, it in no way affects the jurisdiction of the court; and hence a judgment so entered cannot be attacked collaterally. In White v. Crow (110 U. S. 183) an attempt was made to have a judgment declared void because it had been entered before the time for answerimr had expired. Thex court refused to so hold, and quoted as the correct rule from Cornett v. Williams (20 Wall. 220) the following: “The settled rule of law is that jurisdiction, having attached in the original case, everything done within the power of that jurisdiction when collaterally questioned is to be held conclusive of the rights of the parties unless impeached for fraud.” . (See, also, Peck v. Richardson, 9 Hun, 567; White v. Bogart, 73 N. Y. 256; Maples v. Mackey, 89 id. 146.) The distinction between the effect of a mere irregularity in the [584] entry of a judgment and a defective statement in the confession of one, is pointed out in Dunham v. Waterman (17 N. Y. 14). The objection to this rule, that it furnishes an easy method for defrauding creditors, is of little force. There are several other ways in which a debtor may shorten the time for entering judgment against him after action commenced. If either of such methods is taken in furtherance of a fraudulent scheme, the judgment may be set aside at the suit of the injured creditor, but if it is a mere scheme to prefer one over another, there is no legal ground for the creditor to complain. I conclude, therefore, that the mere fact that judgment was entered on the tenth instead of the eleventh of December, did not authorize the. court to set this judgment aside at the suit of this plaintiff. A discussion, therefore, as to whether the subsequent order directing its entry “ nune vro tione ” as of the eleventh was operative against this plaintiff, becomes unnecessary. An examination of the evidence does not disclose any conspiracy or intent on defendants’ part to defraud this plaintiff. The genuineness of the debts for which the judgments were taken and confessed, is not challenged in the complaint nor disproved by the evidence. Undoubtedly there was an intent to give Safran and Mannesovitch a preference in the collection of such debts over this plaintiff, but such a preference maybe lawfully given (Knower v. Central Nat. Bank, 124 N. Y. 552, 558; Delaney v. Valentine, 154 id. 692, 699), and the instrument which gives it is not to be deemed, on that account alone, a'fraudulent one. The claim made by respondent’s counsel, that we must assume that there was evidence sufficient to sustain the judgment rendered, because there is no certificate that the case contains all the evidence, is not sustained by the record before us. At folio 302 is a stipulation to that effect. For these reasons the judgment must be reversed, and a new trial granted, costs to abide the event. 'All concurred. Judgment reversed, and a new trial granted, costs to abide the event.